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David Horton - One of the best experts on this subject based on the ideXlab platform.

  • the stored communications act and digital assets
    Vanderbilt Law Review, 2014
    Co-Authors: David Horton
    Abstract:

    Commentary on Naomi Cahn, Probate Meets the Digital Age1I. INTRODUCTIONThe story has become all too familiar. Someone dies, and her loved ones request the contents of her text, email, or social media accounts. Perhaps they wish to preserve this vibrant electronic slice of the decedent's life.2 Perhaps grief compels them to sift through the minutiae of the decedent's final days.3 Or perhaps they are merely trying to fulfill their duties as trustees, executors, or administrators to pay the decedent's bills and to inventory her property. However, the decedent's Internet Service Provider ("ISP")-be it Facebook, Yahoo!, or Microsoft-refuses to cooperate.As Naomi Cahn explains in her outstanding contribution to the Vanderbilt Law Review's Symposium on the Role of Federal Law in Private Wealth Transfer,4 these ISPs are concerned about a byzantine Federal Statute from 1986: the Stored Communications Act ("SCA"). Section 2701 of the SCA criminalizes unauthorized access to electronic communications,5 presenting a seemingly nasty glitch for fiduciaries attempting to marshal a decedent's digital assets. Section 2702 bars ISPs from disclosing a customer's private data without her "lawful consent."6 Noting that the SCA predates the rise of email-let alone the phenomenon of a valuable Twitter account-Professor Cahn argues that the Statute should not govern fiduciaries.7 Alternatively, assuming that the SCA does apply in the trusts and estates context, Professor Cahn discusses various ways around this obstacle, including the Uniform Law Commission's draft Fiduciary Access to Digital Assets Act ("FADA"), which would clarify that fiduciaries generally enjoy the "authorization"' and "lawful consent" necessary to acquire a decedent's online accounts.8This short invited reply takes a different route to the same destination. It begins by offering a reading of the SCA that diverges slightly from Professor Cahn's. However, it uses that discussion to echo her critique of the SCA and bolster the case for the FADA.II. THE SCAThe SCA is dusty and complex, and courts commonly disagree about the meaning of its key terms. Thus, although many commentators have noted that the Statute "may" cast a shadow over the inheritability of digital assets, few have attempted to define its precise effect.9 Professor Cahn deserves credit for filling this gap. As I discuss next, I partially agree with her claim that the SCA is less of a roadblock than commonly believed.A. Section 2701For fiduciaries, the most intimidating part of the SCA is section 2701. That provision levies criminal penalties upon anyone who "intentionally accesses without authorization a facility through which an electronic communication service is provided" or who "exceeds an authorization to access . . . and thereby obtains, alters, or prevents authorized access to a [η] . . . electronic communication while it is in electronic storage."10 Congress intended this language to create a weapon against "computer hackers (e.g., electronic trespassers)."* 11 But because the statutory text sweeps broadly and prohibits simply "logging onto another's email account without permission,"12 scholars have voiced concern that fiduciaries may violate the SCA by taking control of a decedent's electronic assets.13However, I share Professor Cahn's view that section 2701 does not apply to fiduciaries. For starters, the passage's key phrase- "without authorization"-is exceedingly narrow. "Authorization" means "power granted by authority," as several courts have recognized while interpreting the SCA's sister Statute, the Computer Fraud and Abuse Act ("CFAA").14 As a result, a decedent whose will or trust expressly allows a fiduciary to control her electronic possessions automatically authorizes access to those assets under section 2701.To be sure, because few estate plans actually mention digital assets, the breadth of the term "authorization" does not get us very far. …

  • the stored communications act and digital assets
    Social Science Research Network, 2014
    Co-Authors: David Horton
    Abstract:

    The story has become all too familiar. Someone dies, and her loved ones request the contents of her text, email, or social media accounts. Perhaps they wish to preserve this vibrant electronic slice of the decedent’s life. Perhaps they are compelled in their grieving to sift through the minutiae of the decedent’s final days. Or perhaps they are merely trying to fulfill their duty as trustee, executor, or administrator to pay the decedent’s bills and inventory her property. However, the decedent’s Internet Service Provider (“ISP”) — be it Facebook, Yahoo!, or Microsoft — refuses to comply. As Naomi Cahn explains in her outstanding contribution to the Vanderbilt Law Review’s Symposium on the Role of Federal Law in Private Wealth Transfer, these ISPs are afraid of a byzantine Federal Statute from 1986: the Stored Communications Act (“SCA”). Section 2701 of the SCA criminalizes unauthorized access to electronic communications: a seemingly nasty glitch for fiduciaries attempting to marshal a decedent’s digital assets. Section 2702 bars ISPs from disclosing a customer’s private data without her “lawful consent.” Citing the fact that the SCA predates the rise of email — let alone the phenomenon of a valuable Twitter account — Professor Cahn argues that the Statute should not govern fiduciaries. Alternatively, assuming that the SCA does apply, Professor Cahn discusses various ways around this obstacle, including the Uniform Law Commission’s draft Fiduciary Access to Digital Assets Act (“FADA”), which would clarify that fiduciaries generally enjoy the “authorization”’ and “lawful consent” necessary to acquire a decedent’s online accounts. This short invited reply takes a different route to the same destination. It begins by offering a reading of the SCA that diverges slightly from Professor Cahn’s. However, it uses that discussion to echo her critique of the SCA and bolster the case for the FADA.

David S Law - One of the best experts on this subject based on the ideXlab platform.

  • law versus ideology the supreme court and the use of legislative history
    William and Mary law review, 2010
    Co-Authors: David S Law, David Zaring
    Abstract:

    ABSTRACT Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique--namely, the use of legislative history to determine the purpose and meaning of a Statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted Federal Statute. We also collected original data on the characteristics of each Statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used our data on these statutory characteristics--together with information on the ideological tilt of the Justices, the case outcomes, and the legislators who enacted the Statute--in a logit regression analysis to determine the relative impact of each variable on the likelihood that a Justice would cite legislative history in a given opinion. We find that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a Statute decreases that likelihood. The age of the Statute also matters, but its effect is neither linear nor monotonic: very new and very old Statutes are more likely to elicit legislative history usage than Statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which in turn are more than twice as likely to cite legislative history as concurring opinions. Our findings also suggest that the use of legislative history by one Justice prompts other Justices to respond in kind with legislative history arguments of their own. We found no evidence, however, that the Court's adoption in Chevron v. Natural Resources Defense Council of the doctrine that reviewing courts should defer to reasonable agency interpretations affected the overall propensity of the Justices to cite legislative history. With respect to the impact of ideological factors, liberal Justices are generally more likely than conservative Justices to cite legislative history. In addition, the Justices are more likely to consult legislative history when they are ideologically sympathetic to the purposes of the enacting Congress. At the same time, however, legislative history usage is not correlated with more ideological decision making. Although the decision to use legislative history is influenced by ideological factors, the actual use of legislative history does not make it more likely that a Justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other Justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal Justices who were inclined to cite legislative history have been replaced by conservative Justices who are not so inclined. TABLE OF CONTENTS INTRODUCTION I. THE NORMATIVE DEBATE OVER THE USE OF LEGISLATIVE HISTORY II. THE STATE OF THE EMPIRICAL LITERATURE A. Trends in the Supreme Court's Usage of Legislative History over Time B. …

  • law versus ideology the supreme court and the use of legislative history
    Social Science Research Network, 2010
    Co-Authors: David S Law, David Zaring
    Abstract:

    Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a Statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted Federal Statute. We also collected original data on the characteristics of each Statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used our data on these statutory characteristics - together with information on the ideological tilt of the justices, the case outcomes, and the legislators who enacted the Statute - in a logit regression analysis to determine the relative impact of each variable on the likelihood that a justice would cite legislative history in a given opinion. We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a Statute decreases that likelihood. The age of the Statute also matters, but its effect is neither linear nor monotonic: very new and very old Statutes are more likely to elicit legislative history usage than Statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. Our findings also suggest that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own. We found no evidence, however, that the Court’s adoption in Chevron v. Natural Resources Defense Council of the doctrine that reviewing courts should defer to reasonable agency interpretations affected the overall propensity of the justices to cite legislative history. With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. In addition, the justices are more likely to consult legislative history when they are ideologically sympathetic to the purposes of the enacting Congress. At the same time, however, legislative history usage is not correlated with more ideological decision making. Although the decision to use legislative history is influenced by ideological factors, the actual use of legislative history does not make it more likely that a justice will arrive at his or her ideologically preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so.

Peter Manus - One of the best experts on this subject based on the ideXlab platform.

  • kivalina at the supreme court a lost opportunity for Federal common law
    Pittsburgh Journal of Environmental and Public Health Law, 2014
    Co-Authors: Peter Manus
    Abstract:

    This article discusses the status of Federal common law in the wake of the Supreme Court's May, 2013 denial of petitioners' writ of certiorari in Native Village of Kivalina v. Exxonmobil.  A close reading of Supreme Court and recent appellate decisions on Federal common law as applied to transboundary pollution reveals three views on the availability and function of Federal common law where a Federal Statute addresses a category of environmental harms: presumptive displacement of Federal common law when a Federal Statute creates a regulatory approach, presumptive coexistence of Federal statutory and common law where a Federal Statute does not provide relief for injuries alleged under common law, and case-by-case balancing of the interfering effect of Federal common law against the injuries left unaddressed by Federal statutory law.  The Court’s current approach resides somewhere between presumptive displacement and case-by-case balancing, and although the Court offers various rationales for this approach in its latest Federal common law opinion, the most convincing of these is that cases involving transboundary pollution, particularly those alleging global warming-induced injury, are cumbersome for Federal courts to handle as common law matters.  Allocation of judicial resources is within the Supreme Court's discretion to consider in rejecting a case, but it is a far more pragmatic than principled rationale, and thus less than satisfying as a court’s primary reason for denying relief.  A more principled approach, advocated by Justices Stevens and Blackmun in dissents to two key Federal common law cases, is that the displacement analysis should begin with the premise that the judicial system aims, first and foremost, to compensate the injured, and that a Federal common law claim should be displaced only where the legislative-regulatory regime covering the subject of a common law claim directly addresses the injury alleged under common law.

David Zaring - One of the best experts on this subject based on the ideXlab platform.

  • law versus ideology the supreme court and the use of legislative history
    William and Mary law review, 2010
    Co-Authors: David S Law, David Zaring
    Abstract:

    ABSTRACT Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique--namely, the use of legislative history to determine the purpose and meaning of a Statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted Federal Statute. We also collected original data on the characteristics of each Statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used our data on these statutory characteristics--together with information on the ideological tilt of the Justices, the case outcomes, and the legislators who enacted the Statute--in a logit regression analysis to determine the relative impact of each variable on the likelihood that a Justice would cite legislative history in a given opinion. We find that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a Statute decreases that likelihood. The age of the Statute also matters, but its effect is neither linear nor monotonic: very new and very old Statutes are more likely to elicit legislative history usage than Statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which in turn are more than twice as likely to cite legislative history as concurring opinions. Our findings also suggest that the use of legislative history by one Justice prompts other Justices to respond in kind with legislative history arguments of their own. We found no evidence, however, that the Court's adoption in Chevron v. Natural Resources Defense Council of the doctrine that reviewing courts should defer to reasonable agency interpretations affected the overall propensity of the Justices to cite legislative history. With respect to the impact of ideological factors, liberal Justices are generally more likely than conservative Justices to cite legislative history. In addition, the Justices are more likely to consult legislative history when they are ideologically sympathetic to the purposes of the enacting Congress. At the same time, however, legislative history usage is not correlated with more ideological decision making. Although the decision to use legislative history is influenced by ideological factors, the actual use of legislative history does not make it more likely that a Justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other Justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal Justices who were inclined to cite legislative history have been replaced by conservative Justices who are not so inclined. TABLE OF CONTENTS INTRODUCTION I. THE NORMATIVE DEBATE OVER THE USE OF LEGISLATIVE HISTORY II. THE STATE OF THE EMPIRICAL LITERATURE A. Trends in the Supreme Court's Usage of Legislative History over Time B. …

  • law versus ideology the supreme court and the use of legislative history
    Social Science Research Network, 2010
    Co-Authors: David S Law, David Zaring
    Abstract:

    Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a Statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted Federal Statute. We also collected original data on the characteristics of each Statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used our data on these statutory characteristics - together with information on the ideological tilt of the justices, the case outcomes, and the legislators who enacted the Statute - in a logit regression analysis to determine the relative impact of each variable on the likelihood that a justice would cite legislative history in a given opinion. We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a Statute decreases that likelihood. The age of the Statute also matters, but its effect is neither linear nor monotonic: very new and very old Statutes are more likely to elicit legislative history usage than Statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. Our findings also suggest that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own. We found no evidence, however, that the Court’s adoption in Chevron v. Natural Resources Defense Council of the doctrine that reviewing courts should defer to reasonable agency interpretations affected the overall propensity of the justices to cite legislative history. With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. In addition, the justices are more likely to consult legislative history when they are ideologically sympathetic to the purposes of the enacting Congress. At the same time, however, legislative history usage is not correlated with more ideological decision making. Although the decision to use legislative history is influenced by ideological factors, the actual use of legislative history does not make it more likely that a justice will arrive at his or her ideologically preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so.

David Mcnamee - One of the best experts on this subject based on the ideXlab platform.

  • sovereign and state a democratic theory of sovereign immunity
    Texas Law Review, 2015
    Co-Authors: Corey Brettschneider, David Mcnamee
    Abstract:

    Sovereign immunity is an old idea, rooted in monarchy: the king cannot be sued without consent in his own courts. The American Constitution, by contrast, is committed to popular sovereignty and democratic self-rule. It is hardly surprising, then, that sovereign immunity doctrine comes riddled with confusion when awkwardly transplanted to a democratic context. But scholars have so far overlooked a cure for these confusions-to revisit the fundamental question of sovereignty in a democracy. In this Article, we aim to reconcile the doctrine of sovereign immunity with the Constitution's core commitment to democracy. On our view, a state is rightly immune from suit when it acts as the democratic sovereign. This includes the authority to make what we will call "sovereign mistakes." For a plaintiff to raid the treasury to pay for losses stemming from public policy decisions, even in error, vitiates the sovereign power of the purse. But a necessary condition for democratic legitimacy is that the sovereign must respect citizens' fundamental constitutional rights. And so when the state violates these rights, it no longer acts as the democratic sovereign, and it does not enjoy immunity from suit. The mantle of democratic sovereignty passes to the citizen-plaintiff instead. Part I considers and rejects the all-or-nothing approaches to sovereign immunity doctrine that dominate the literature. Part II then develops our democratic alternative. Parts III and IV apply this democratic principle of sovereign immunity to breathe new life into the doctrine-providing a normative justification for immunity where it lies while also carving out its limits.IntroductionFew areas of doctrine have sown as much confusion over the past two centuries as the Supreme Court's sovereign immunity jurisprudence.1 And today it appears to occupy a kind of twilight zone in constitutional theory. Its defenders, who tend towards conservative originalism, invoke a broad principle of sovereign dignity that finds no home in the constitutional text.2 Its liberal detractors, who favor expansive interpretations of rights and powers under the Constitution, instead call for a narrow reading of the Eleventh Amendment in isolation.3 We argue that much of this confusion stems from a failure to appreciate the theoretical question at the core of the doctrine: how can we reconcile it with democracy?What does it mean to say that the sovereign is immune from suit in a system of popular sovereignty? The answer to this question cannot rest in some excursion to the doctrine's historical and monarchical roots. But neither can it be wholesale rejection of the doctrine-a system of popular sovereignty is not a system that lacks sovereignty altogether. To solve this apparent morass, we offer a democratic account of sovereignty, one that both registers the importance of collective decision making and respects the fundamental rights of citizens. We therefore tie the seemingly confused doctrine of sovereign immunity to the more generalized democratic ambitions of the Constitution as a whole. We begin with the fundamental question at the heart of sovereign immunity: when may citizens sue a democratic state? Consider the following cases:* A prison guard sexually assaults an inmate, who then sues the Federal government as his employer.4* A state college bookstore receives preferential transfers from a debtor who has filed for bankruptcy, and the court-appointed trustee sues to recover them to distribute them fairly.5* A Federal Statute requires states to negotiate with Native American tribes over the operation of gaming facilities.6 One tribe sues the State of Florida for breach of this duty, seeking to compel negotiations.7* After finding a pattern of racial segregation, a Federal court orders the Governor of Michigan to fund remedial education programs as part of the desegregation decree.8These cases trace just a few of the many wrinkles in the law of sovereign immunity. …